[1] Whether a contract for the transfer of real estate ownership should be effective in order to establish a crime of violation of Article 8 subparag. 2 and Article 6 of the Act on Special Measures for the Registration of Real Estate (affirmative)

[2] The case holding that where a sale and purchase contract for the land within the land transaction permission area was concluded for the purpose of avoiding the land transaction permission from the beginning, the crime of violating Article 8 subparagraph 2 and Article 6 of the Act on Special Measures for the Registration of Real Estate is not established

[3] The case holding that where a sale contract was actually concluded on the land within the land transaction permission area, but the registration of ownership transfer was completed with the grounds for registration as "donation" for the purpose of evading the land transaction permission from the beginning, it constitutes a crime of false entry in the original authentic document

[1] Article 8 subparagraph 2 of the Act on Special Measures for the Registration of Real Estate provides that the person who is obliged to apply for the registration of ownership transfer under Article 6 of the same Act shall be punished when he/she violates the provisions of Article 6 of the same Act, and Article 6 of the same Act shall not apply for the registration, stating the grounds for registration by false entry in the application for registration. Article 2 of the same Act limits the criminal subject to crime to "the person who is obliged to apply for the registration under Article 2", and Article 2 (1) of the same Act provides that the person who has entered into a contract with the contents of the transfer of ownership of real estate shall file an application for the registration of ownership transfer within a certain period, but the same shall not apply where the contract is revoked, rescinded or null and void. In full view of each of the above provisions, in order to establish a crime of violation

[2] The case holding that since a sale and purchase contract for land within a land transaction permission area was concluded with the intention to complete the registration of ownership transfer by pretending the donation for the purpose of evading the land transaction permission from the beginning, the above sale and purchase contract is finally null and void, the crime of violating Article 8 subparagraph 2 and Article 6 of the Act on Special Measures for the Registration of Real Estate

[3] The case holding that where a sale contract was actually concluded on land within a land transaction permission area, but the registration of ownership transfer was completed with the grounds for registration "donation" for the purpose of evading land transaction permission from the beginning, even if the seller and buyer agree to the intention to complete the registration of ownership transfer for the reason of "donation" different from the actual reason, it constitutes a case where a false report was made to enter false facts in the original notarial deed

[1] Articles 2, 6, and 8 subparag. 2 of the Act on Special Measures for the Registration of Real Estate / [2] Articles 6 and 8 subparag. 2 of the Act on Special Measures for the Registration of Real Estate, Article 118 of the National Land Planning and Utilization Act / [3] Article 228(1) of the Criminal Act, Article 118 of the National Land Planning and Utilization Act

[1] [2] Supreme Court Decision 2005Do10033 Decided March 24, 2006 / [1] Supreme Court Decision 2005Do6557 Decided December 22, 2005 (Gong2006Sang, 199)

Defendant

Defendant and Prosecutor

Daejeon District Court Decision 2005No934 Decided December 1, 2005

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. As to the prosecutor's appeal

A. As to the violation of special measures for the registration of real estate

Article 8 subparagraph 2 of the Act on Special Measures for the Registration of Real Estate provides that the person who shall apply for the registration of ownership transfer pursuant to the provisions of Article 6 of the same Act shall be punished when he/she violates the provisions of Article 6 of the same Act. Article 6 of the same Act provides that an application for the registration of ownership transfer pursuant to the provisions of Article 2 of the same Act shall not apply for the registration by falsely stating the grounds for registration in the application for registration. The crime subject is limited to "the person who shall apply for the registration pursuant to Article 2" and Article 2 (1) of the same Act provides that a person who has entered into a contract for the transfer of ownership of real estate shall file an application for the registration of ownership transfer within a given period, but the same shall not apply where the contract is revoked, rescinded, or null and void. In light of the above provisions, in order to establish

On the other hand, the land transaction contract for the land within the land transaction permission area under the National Land Planning and Utilization Act shall take effect only with the permission of the competent authority, and in principle, it shall become null and void before obtaining the permission. However, even if the transaction contract which is concluded on the premise that the permission is granted, once the permission is granted, it shall become effective retroactively, but if the contract is entered into with the contents of excluding or evading the permission from the beginning, it shall be null and void finally (see Supreme Court en banc Decision 90Da12243, Dec. 24,

Examining the reasoning of the judgment below in light of the records, in order to establish a violation of Article 8 subparag. 2 and Article 6 of the Act on Special Measures for the Registration of Real Estate, the court below is just in finding the defendant not guilty of this part of the facts charged on the ground that the sales contract between the defendant and co-defendant No. 1, the first instance court's co-defendant No. 1, as to the land located within the area subject to land transaction permission, was concluded with the intention of pretending the donation for the purpose of evading the land transaction permission from the beginning, and thus, it was finally null and void. There is no error

B. As to the fraudulent entry in the authentic copy of a notarial deed

The crime of false entry in the original of a notarial deed under Article 228(1) of the Criminal Act is a crime, the legal interest of which is protected by the law to guarantee the public credit in respect of public documents whose special credibility is recognized, and is established by having a public official enter or register false facts inconsistent with the substantive relations, such as the original of a notarial deed or the same electronic record, by filing a false report contrary to

According to the reasoning of the judgment below, while the Defendant actually entered into a sale contract on the instant land located within the land transaction permission area with the relevant third party, the Defendant completed the registration of transfer of ownership in the title of the third party with the cause for registration as “donation,” unlike the actual one, for the purpose of evading land transaction permission from the beginning. As seen earlier, the said sale contract is null and void, and the transfer of ownership is not consistent with the substantive relationship, and such transfer of ownership registration is highly likely to undermine the public trust on the land register. Therefore, even if the Defendant and the relevant third party agree to conduct the registration of transfer of ownership for the reason of “donation,” the above registration is deemed to constitute a case where the Defendant and the relevant third party made a false report and made a false statement on the original copy of the authentic deed.

In a different view, the judgment of the court below which acquitted the Defendant of this part of the facts charged on the ground that there was a mutual agreement between the Defendant and the current party as above is erroneous in the misapprehension of legal principles as to the false entry in the original copy of a notarial deed. The ground of

The Supreme Court Decisions stated in the lower judgment are different from the case, and are not appropriate to be invoked in this case.

2. As to the defendant's appeal

The defendant's ground of appeal is to the purport that the sentencing of punishment is unfair, and in this case where the defendant has been sentenced to imprisonment for less than 10 years, the reason that the sentencing of punishment is unfair shall not be a legitimate ground of appeal.

3. Scope of reversal

Therefore, the part of the judgment of the court below concerning the crime of false entry in the authentic copy of a notarial deed should be reversed. The part concerning the crime of violation of the Act on Special Measures for the Registration of Real Estate, which is the primary charge, is identical to the part concerning the crime of false entry in the authentic copy of the notarial deed, should be reversed. In addition, the part concerning the crime of violation of the National Land Planning and Utilization Act, which the court below found guilty, should be reversed since it has a concurrent relation with the above crime of false entry in the authentic copy of the notarial deed,

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)